EI INCUMBIT PROBATION QUI DICIT.Proof lies on him who asserts, not on him who denies. The concept is that
one is innocent until proven guilty. Regardless of what the law says about
reasonable doubt, there is an unwritten presumption within the ranks of
the military that if you are charged with sexual assault, then you are
guilty. The stakes are your life! Your military counsel works for the
same military that charged you. Consider that as you choose who represents
you in your potentially life altering case.

Non-Judicial Punishment - Army

The Uniform Code of Military Justice or UCMJ has provisions for punishments like
court martial as well as non- judicial punishments. The latter are typically invoked
under Article 15 when the objective is to maintain discipline in the army.
Commanders are authorized to punish minor infractions using the UCMJ's
non-judicial punishment provisions as the basis.

The kind of punishment imposed, its degree/ severity and the duration vary
depending on several factors. Confinement on reduced rations, extra duty,
pay forfeitures, correctional custody, pay detention and grade reduction
may be meted out as non- judicial punishment if the commanding officer
is satisfied that the accused is guilty of the alleged minor offense.

What constitutes a 'minor offense'?

It is up to the commanding officer of the accused to make the final decision
about whether or not the offense can be deemed to be 'minor'. Offenses
that typically fall under this description are petty theft, destruction
of government property, reporting late to the post, giving false information,
falling asleep when on sentry duty or disobedience with respect to standard orders.

In accordance with para 1d(1), part V, MCM, 2008, use of
non-judicial punishment is justified only when non- punitive measures are inadequate to address
the offense committed by the accused army member. Immediate action is
necessary when non- judicial punishment is being imposed to ensure that
it is effective. In effect, the commander may resort to this kind of punishment
when he has enough cause to believe that non- punitive measures will not
have the desired deterrent, corrective effect on the soldier. He may also
use non- judicial punishment as a form of correcting the soldier without
damaging his record of service, which is inevitable if a court martial
is conducted.

An important point to note here is that the imposition of such punishment
does not bar a court martial from being conducted for the same offense
since the commanding officer uses his discretion to term the offense 'minor'.

Any commander may impose non- judicial punishment unless:

The regulation specifies otherwise

A superior of the commander has restricted his/ her authority to do so

Who can be punished with non- judicial punishment?

All military personnel who are assigned to the organization under the command
of a specific commanding officer, or affiliated in any way to such a command
or who fall within the territorial command responsibility of the officer
can be given non- judicial punishment under the UCMJ Article 15 provisions.
The commander has to verify that the accused has actually committed the
alleged act and that it violated a rule that the soldier was duty bound
to obey, or it was against the UCMJ, Army Policy, Army Regulations, local
law or any other lawful order.

The Procedure for Imposing Non-Judicial Punishment

The soldier has to be notified about the imposition of the non- judicial
punishment before it comes into force, right at the stage when it is being
considered. He has a right to know what his alleged offenses are and also
be given a summary of the evidence that indicates that he has committed
the offense. He also has the right to be informed of all his rights in
this respect before the proceedings start. The soldier has the right to
refuse the non- judicial punishment, but this does not mean that the charges
against him have been dismissed.

The soldier can enforce his right to be present when the commanding officer
imposes the punishment. He can examine the evidence that is the basis
of the accusation made against him and also present his side of the situation
either on his own or through a spokesperson. If he so wishes, the soldier
can also ask for the proceedings to be made public. For those who cannot
or prefer not to make a personal appearance at the proceedings, a written
representation can be made if the commanding officer agrees.

The procedure for appeal is outlined in para 3- 29 of the manual which
allocates a time period of five calendar days for the soldier to protest
against the punishment on the grounds that it is either unjust or disproportionate
to the offensive act.

Statute of Limitations

The accused army member must take note that a statute of limitations applies
on non- judicial punishments. If a period of two years has already passed
from the date of the alleged offense non- judicial punishment cannot be
imposed. The UCMJ articles 43 (c) and (d) outline how this two year period
is calculated. One aspect to keep in mind here is that there are some
situations where the 2 year time limit may not apply. For example, when
the soldier accused of the offense is absent from duty without the permission
of his superiors, when he has been apprehended by civil authorities or
when he is on the run from the law.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.